The failed war on drugs (part 1)

Preamble.

This is the first in a series of articles to be posted here on the ‘War on Drugs’, focusing mainly on the Australian and U.S contexts. I hope to make several points throughout this series of articles critiquing the global drug war, particularly when it comes to the politics of these policy areas. Firstly, that although the ‘War on Drugs’ has run somewhat parallel in both the U.S and Australia, differences in both the severity and discriminatory application of our respective drug laws have yielded a vast gulf between the politics of this issue in the U.S today, and the political discourse (or lack thereof) on this issue in Australia. To this end, this first article will provide a very brief history U.S ‘War on Drugs’, from which most of the world’s western liberal democracies have taken their queue on this policy area. This first article is meant to function merely as a brief summary of the historical development of the U.S drug war, and the politics surrounding it, focusing mainly on the modern drug war (the post-Nixon era), but also putting that into the larger context of the history of this issue in the U.S, which began as early as the 1920’s.

Following on from this brief history, the second article in this series will seek to provide analysis of the current drug policies of both the U.S and Australia, exploring both the unintended consequences of our policies, as well as their efficacy & efficiency in dealing with the harms associated with drug use and abuse. Following on from the brief history of this issue detailed in the first article, the second article will suggest that the gulf between the politics of this issue in the U.S and Australia has resulted from the difference in the comparative severity and racial discrimination of U.S drug laws compared to their Australian counterparts. Furthermore, the second article in this series will make the case that the gulf between the politics of drug laws in Australia and those in the U.S is at its widest between the Australian left and/or progressive movement, and its U.S counterpart. Legalising, taxing, and regulating marijuana has become mainstream democratic politics in the U.S, with three states having legalised pot by a popular vote already, and Gallup (who has conducted regular polling on this issue since the 1950’s) national polling shows that for the first time in history, a clear majority of Americans support legalising pot (Gallup shows 56% support, other polls range from 50-62%), a figure that has held steady for a several years now. Democrats favour legalising pot by about 2:1 in polls, and many U.S political commentators believe that favouring ‘pot legalisation’ will be a litmus test for any potential 2016 Democratic nominee for President. Likely 2016 Democratic primary candidate, New York Governor Andrew Cuomo recently made headlines by threatening to veto a Republican bill providing for pay rises for state Senators and members of Congress, unless they passed his bill to decriminalise marijuana – a battle which he quickly won, thanks largely to overwhelming public support. Contrast this to Australia, where members of both major parties refuse to even engage in a conversation about legalising the use of medical marijuana (which a majority of U.S states have had in place for years) as an alternative to more harmful, dangerous, addictive, and expensive pharmaceutical drugs like opiate pain killers, that damage the already strained critical organs of cancer patients, and diminish quality of life.

I have two central contentions which I am attempting to make the case for, throughout this series of articles on the ‘War on Drugs’:
1. The status quo does not work. Our drug policies have caused more harm than good, and will continue to do so in the absence on substantive drug law reform. Most of the harms we associate with drug use and abuse today, are not the results of drugs themselves, but rather are the results of our policies under the ‘War on Drugs’.

2. That while Australia is fortunate to have escaped some of the darkest elements of the U.S drug war throughout history, we are now paying the price for it in our political discourse. While it seems the U.S is beginning to wake up, and political momentum is being gathered towards a critical mass in favour of dramatic drug law reform, that level of political discourse, and desire for evidence based policies on this issue is nowhere to be seen in Australia. This is particularly the case in the progressive and left leaning Australian political movement, where I’d suggest, on this policy area, those of us Australians who come from a broadly left or progressive perspective, are at least a decade behind our U.S counterparts when it comes to our thinking (and complete lack of activism) on this issue. This, I would suggest is based largely on a long-held misconception, which Democrats in the U.S are only now beginning to wake up to, after years of overwhelming evidence. That misconception, which I believe is widely held by left-leaning and progressive Australians, is the belief that criminalisation of recreational drugs represents the ultimate form of regulation. What I hope to prove above all else in this series of articles, is that what this in fact represents is the exact opposite; the complete abduction of responsibility to safely regulate these potentially harmful substances in the public interest.

Further to this second point, I hope to persuade some of the left-leaning and progressive people reading this series of articles, who do not already favour the legalisation, taxation, and government regulation of recreational psychoactive drugs, that although it may at first seem counterintuitive, this kind of reform to our drug laws is not anathema to our values, but rather entirely consistent with them. This is not just some libertarian fringe issue, a theoretical academic question, or a bourgeois desire for easier access to ‘lifestyle drugs of choice’. What we do in response to the issue of psychoactive drugs has consequences, and those consequences affect all of us, not just those who use drugs. For those of us who believe that when it comes to dangerous and potentially harmful matters, the role of government is to intervene to protect the physical and mental health of individuals, along with society at large, by creating evidence based policies to efficiently and effectively minimise risks, harms, and the social and economic costs to society, the status quo on this issue should no longer be viewed as tenable, and cannot be tolerated any longer.

Not only do our current drug laws contradict a core tenet of progressive ideology (that government has a role to play in reducing the risk of significant harm to its citizens), our current legal regime has always overwhelmingly punished poor, uneducated, disadvantaged, non-white (and especially Aboriginal) people disproportionately, as well as those suffering from mental health issues, and continues to do so today. Instead of paying lip-service to these groups of people, it’s about time us left-leaning and progressively minded people had the courage to begin breaking the taboo surrounding this issue in Australia, and begin publicly advocating to do the single easiest, most effective, cost efficient (and even net revenue generating) thing we can do, to unequivocally remove one of the most significant remaining institutional barriers to the equal treatment of groups who have been historically discriminated against both here in Australia, and even more so in the U.S. This would end the decades long war, which has effectively resulted in the criminalisation of poor, uneducated, disadvantaged, non-white people for decades. We must overcome our knee-jerk reactionary instinct on drugs, and finally accept what the experts have been telling us for decades – our current policies are based on nothing more than a whim; a gut feeling that drugs are bad, along with the primitive base instinct to fear that which we are ignorant about (drugs, and the people who use them).

Granted, this is a difficult policy area, but it is not one we don’t know the answers to. The U.N Global Commission on Drug Policy has for years been publishing reports containing conclusive data and case studies comprehensively proving that in all countries that have taken a harsh approach to drugs, sanctioning severe criminal penalties, drug abuse and all associated physical, mental, social, and economic costs associated with drug abuse have increased, while in those countries with more liberal drug laws, all key indicators of drug related harm have steadily decreased. Every year the United Nations continues to call for the decriminalisation and/or legalisation, taxation and regulation of many illegal drugs, a call that falls on deaf ears. Every year, visiting experts on drug policy meeting with Australian political leaders continue to tell the Australian media that behind closed doors the politicians understand that this is the worst and most costly policy failure of several decades, and that the solution lies in the legalisation, taxation and regulation of these substances. Yet every year, hundreds of Australians continue to die from preventable, unintended consequences of the drug policy, simply because the politicians believe that the public is not yet ready for such a change, and therefore don’t view drug law reform as viable politically.

In short, this series of articles will investigate how this has come to be the case, what unintended consequences we are suffering as a result, what the reasonable alternatives to this are. Furthermore, I hope to make the case that those of us from a broadly left-wing and/or progressive perspective, who are compassionate, believe in human rights, personal autonomy, and care about defending and providing representation for marginalised groups, should absolutely find our current policies to be both abhorrent and intolerable. We are the ones who should be at the forefront of this, and yet our silence on this issue is deafening. Progressive and left-leaning Australians should follow the lead of their Democratic counterparts in the U.S, and demand that our government should finally accept responsibility to regulate these substances in the public interest, and to base our drug policies on evidence, human rights, public health, compassion, harm minimisation, human solidarity, freedom of thought, personal responsibility, and the right to sovereignty over one’s own mind and consciousness.

Our History of Criminalising Poor & Uneducated People.

Do you think it’s reasonable, and important to have a strong public discourse on policy matters that affect public health? What about the economy and unemployment? Do we also believe that, particularly in an election year, it’s both relevant and desirable that we should discuss these issues, along with government debt, terrorism, national security, the war in Afghanistan, crime rates, and global instability and inequality? Do we agree that the role of government in relation to these issues, should be to take an evidence based approach, aimed at ensuring the best possible policy outcomes, in the most efficient way possible? Great, then let’s talk about one of the main negative forces on all of these policy areas; our drug laws.

Illegal drugs are dangerous and potentially harmful, right? Sure, there’s no argument there. So, the question is, what do we do about them? What we have done for many decades now, is exercise a zero tolerance policy in relation to recreational psychoactive drugs; criminalising the production, distribution, possession and consumption of these substances, under the so called global ‘War on Drugs’.

In 1971, U.S President Richard Nixon first coined the term ‘War on Drugs’, referring at the time to the suite of policies his administration had legislated the year before, in the Comprehensive Drug Abuse Prevention and Control Act of 1970. He first used the term during a now famous press conference, at which he declared that “America’s public enemy number one in the United States is drug abuse. In order to fight and defeat this enemy, it is necessary to wage a new, all-out offensive”.[1] Although in 1971 Nixon was referring mainly to the suite of policies his administration had signed off on just a year earlier, both the purpose and effect of the legislation overall merely amounted to a more punitive modernisation and continuation of the existing illicit drug policies which began nationally in the United States as early as 1923, when the first ever federal drug agency, the U.S. Treasury Department’s ‘Narcotics Division’, banned all previously legal narcotic sales. While the U.S congress had previously made some changes to drug policy, like banning the importation of opium in the early 1900’s, this 1923 measure was the first to criminalise the sale of an entire class of psychoactive drugs,  and crack down on the sale of narcotics at a national level.[2] This federal law followed a number of local drug laws in various places, the vast majority of which were designed and used to discriminate against local populations of immigrant men perceived as being threats to ‘American’ jobs, or as leading lives of social deviancy.[3] Drug laws in other areas focused on local populations of African American men, often perceived as being a threat to the safety and ‘innocence’ of white women even at the best of times, let alone while under the influence of mind-altering drugs already viewed with suspicion and discomfort by most white folks because of the perceived association between these drugs and various minority populations. Nonetheless, the 1923 federal crackdown on narcotics meant that for the first time, consumers of heroin were forced to buy from street dealers, instead of the legal pharmacies at which it had always been sold at. [4]

While these sorts of laws steadily began to appear at a federal level as early as the 1920’s, it was not until the late 1960’s that the ‘War on Drugs’ truly came to mainstream prominence (and was then dramatically escalated both rhetorically, and in terms of the harsh law & order approach by President Reagan in the 1980’s).[5] It is no coincidence that this (the late 1960’s and early 70’s) is the exact time that drugs were becoming “symbols of youthful rebellion, social upheaval, and political dissent”.[6] Drug use was becoming ‘fashionable’, particularly amongst young, educated, white, and middle-class Americans, inspired by their pop culture and rock & roll icons that glamorised the use of psychoactive drugs like marijuana and LSD. Many of these rock & roll icons, and other celebrities were also increasingly becoming agents for dramatic social and political change, ushering in a new era of radical protests fuelled by galvanised public outrage. During this dramatic period, the political landscape was completely reshaped. This political upheaval, coupled with significant parallel changes that were occurring simultaneously in the social sphere (ie: the feminist movement, the anti-war movement etc.) gave birth to a new era of radicalism. At this time, the taboo and stigma that had surrounded drug use (most of which had been based on racial discrimination and stereotyping) quickly began to decrease, as drugs like marijuana increasingly pervaded mainstream culture through mediums like rock & roll, and other pop culture. By the time Nixon announced the so called ‘War on Drugs’, pot and other psychedelic drugs like LSD had become synonymous with the radical protests and rebellion that would come to characterise that era of radical social and political change had well and truly begun.

In spite of the momentum and direction of the changes occurring around him, so determined was Nixon to wage an “all out offensive” against the ‘drug menace’, that in addition to dramatically increasing the budgets and scopes of federal drug control agencies, and pushing through mandatory minimum sentencing laws for drug offences, Nixon even went as far as placing marijuana in the ‘Schedule One’ category. This category of illegal drugs attracts the harshest criminal penalties, allegedly on the basis that they represent the greatest harm or risk to society. This had the effect of legally (or criminally) and politically making no distinction between marijuana and heroin.[7] Nixon initially announced the move as being temporary, pending the results of a review to be conducted by a commission, the members of which would be appointed by Nixon himself. Nixon appointed a fellow Republican, Pennsylvania Governor Raymond Shafer to chair the commission. In 1972, the commission unanimously recommended the immediate decriminalisation of possession of marijuana for personal use. Perhaps due in part to the timing of the report (1972 was an election year, at the end of Nixon’s first term), Nixon fiercely rejected the central recommendation of his own committee, and in the months that followed he campaigned doggedly on his ‘tough on crime’ approach to drugs, citing the record numbers of drug related incarcerations and mandatory minimum sentences handed down during his administration, as evidence for his tough on crime credentials. History also shows us that Nixon’s campaign would also ultimately prove to be overwhelmingly effective in their efforts to further perpetuate the perception of the Democratic nominee George McGovern as a “pro-amnesty, abortion and acid (LSD) liberal”.[8]

While this dramatic ramping up of law and order drug policies under Nixon was fairly significant at the time, it proved to only be a small taste of what was to come under the Presidency of Ronald Reagan. Reagan’s administration marked the real beginning of a long and continuing ‘boom’ period of skyrocketing rates of incarceration, as Reagan’s administration re-escalated the drug war (which has more or less continued on trend since, under Presidents Clinton, Bush, and Obama). From 1981 to 1997, the number of people incarcerated in the U.S on nonviolent drug law offences increased from 50,000 to 400,000 (a factor of 8). Many of these arrests are the results of the so called ‘crack epidemic’ of the 1980’s. [9]

The term ‘crack epidemic’ is a term coined by the media during the 1980’s to sensationalise the reporting of crack-cocaine use by black men during that period, and to a lesser extent, the 1990’s. As with the period of ‘reefer madness’ that characterised the overblown, mainstream media reporting and government sponsored advertising exaggerating the dangers of marijuana during the 1950’s and 60’s, the onset of the ‘crack epidemic’ resulted in an onslaught of sensationalised stories about the mysterious, and seemingly race-specific powers of crack-cocaine. Every day brought a new story about how crack-cocaine causes black men to lose control of their raw, animalistic sexual appetites, resulting in the rape of white women. Other stories suggested that in addition to rendering black men completely incapable of refraining from committing rape, crack-cocaine also gave black men some sort of superhuman strength, enabling them to withstand bullets which would kill any other man.[10] As ridiculous as this may now sound, while of course these media reports and government advertising had no effect on curbing drug use and abuse (largely because their overblown claims about the effects of these drugs were so far removed from reality and the experiences of drug users that they were viewed with ridicule), they were incredibly effective in achieving their intended political purpose. In 1985, polls showed that only 2-6% of Americans viewed drug abuse as the nation’s “number one problem”. That figure steadily grew through the remainder of Reagan’s administration until in 1989, it reached a truly remarkable 64% – “one of the most intense fixations by the American public on any issue in polling history”.[11] As the media’s insatiable appetite for sensational, ratings-driven content led it elsewhere, that figure quickly fell to less than 10% with a year.[12] What of course remained though, were the mandatory minimum sentences, massive racial discrimination in the application of drug laws, other draconian policies, and a hysterical mysticism about the effects of drugs, and the people who use them.

While in the U.S, various politicians have cracked down on various specific types of drugs to exploit various political advantages over the years, and the rhetoric around some other drugs has changed over time, the overall trajectory of the ‘War on Drugs’ has remained fairly steady (although is just now beginning to change course in the U.S). As with many things, perhaps the clearest picture is painted by following the money. U.S federal spending on the DEA (Drug Enforcement Agency) provides an apt illustration of our progress in the ‘War on Drugs’. This chart details the changes to the DEA budget (the main federal agency in charge of enforcing criminal drug laws) over the four decades since President Nixon created it:[13]

Year President Total Number of DEA Employees DEA Budget (In Millions)
1972 Richard Nixon 2 775 $65.20
1973 Richard Nixon 2 898 $74.90
1974 Richard Nixon 4 075 $116.20
1975 Gerald Ford 4 286 $140.90
1976 Gerald Ford 4 337 $161.10
1977 Jimmy Carter 4 439 $172.80
1978 Jimmy Carter 4 440 $192.30
1979 Jimmy Carter 4 288 $200.40
1980 Jimmy Carter 4 149 $206.70
1981 Ronald Reagan 4 167 $219.50
1982 Ronald Reagan 4 013 $244.10
1983 Ronald Reagan 4 013 $283.90
1984 Ronald Reagan 4 093 $326.60
1985 Ronald Reagan 4 936 $362.40
1986 Ronald Reagan 4 925 $393.50
1987 Ronald Reagan 5 710 $773.60
1988 Ronald Reagan 5 740 $522.90
1989 George H. W. Bush 5 926 $597.90
1990 George H.W. Bush 6 274 $653.50
1991 George H.W. Bush 7 096 $875.00
1992 George H. W. Bush 7 264 $910.00
1993 Bill Clinton 7 266 $921.00
1994 Bill Clinton 7 049 $970.00
1995 Bill Clinton 7 389 $1,001.00
1996 Bill Clinton 7 369 $1,050.00
1997 Bill Clinton 7 872 $1,238.00
1998 Bill Clinton 8 452 $1,384.00
1999 Bill Clinton 9 046 $1,477.00
2000 Bill Clinton 9 141 $1,586.00
2001 George W. Bush 9 209 $1,697.40
2002 George W. Bush 9 388 $1,799.50
2003 George W. Bush 9 725 $1,891.90
2004 George W. Bush 10 564 $2,040.00
2005 George W. Bush 10 893 $2,142.00
2006 George W. Bush 10 891 $2,264.00
2007 George W. Bush 10 759 $2,346.00
2008 George W. Bush 10 774 $2,494.00
2009 Barrack Obama 10 784 $2,602.00

As the chart illustrates, DEA funding was $65.2 million at the time Nixon created the agency. By the end of his term, it had already almost doubled to $116.2 million. This of course paled in comparison to Reagan, who increased DEA funding from $219.5 to a peak of $773.6 million during his administration, before reducing it to $522.9 million during the last year of his term. It should also be said that Bill Clinton (who now publicly advocates for legal regulation and taxation of pot, as well as the decriminalisation of other various other currently illicit psychoactive drugs) was not much better during his term, increasing funding from $921 million to a staggering $1.586 billion. Perhaps the worst offender of all though, was the younger Bush, who took DEA funding from $1.697 billion to an enormous $2.494 billion in 2009. In what is perhaps a sign of the changing political landscape of this issue, Barrack Obama has actually decreased the DEA budget, with figures showing the 2012 budget down to $2.035 billion (though perhaps not worthy of celebration yet, it’s at least the first step in the correct direction in over 25 years.[14] Of course, these costs represent only a fraction of actual U.S spending on the drug war, with the majority going towards the private prison system (driven by long mandatory minimum sentences), and to funding the criminal justice system.

So in the 90+ years since the U.S began banning drugs (with the rest of the world’s western liberal democracies more or less having steadily followed suit), and the 40+ years since Richard Nixon dramatically escalated the global ‘War on Drugs’, what have these policies actually delivered, apart from an opportunity for politicians to boost their ‘tough on crime’ credentials around election time? Well to begin with, there are more black men incarcerated in U.S prisons today on non-violent drug offences than were enslaved in 1850 (just prior to the Civil War). Just let that fact detonate in your brain for a moment. There are more non-violent, black men incarcerated for victimless crimes today than were slaves before the abolition of slavery. For further analysis on the efficacy, efficiency, direct and indirect costs, and unintended consequences of our current drug laws, particularly in Australia, see the next (2nd) article in this series; ‘Let’s Talk About the $10b Elephant in the Room’.

Andrew Smith is studying a Bachelor of Laws/Arts majoring in Politics at La Trobe University. 


[1]U.S President Richard Nixon, speaking at a press conference in 1971. For transcript: http://www.presidency.ucsb.edu/ws/index.php?pid=3047#axzz1PCJydjl5.

[2]For a timeline of the history of the production, distribution, use, and regulation of heroin and other opiates, see: http://www.pbs.org/wgbh/pages/frontline/shows/heroin/etc/history.html.

[5] For ‘A Brief History of the Drug War’ in the U.S, see: http://www.drugpolicy.org/new-solutions-drug-policy/brief-history-drug-war

[6]A Brief History of the Drug War’, The Drug Policy Alliance, http://www.drugpolicy.org/new-solutions-drug-policy/brief-history-drug-war.

[7]A Brief History of the Drug War’, The Drug Policy Aliance, http://www.drugpolicy.org/new-solutions-drug-policy/brief-history-drug-war

[8] Joan Walsh, 21 Oct 2012, ‘George McGovern: He Deserved Better’, Salon Magazine, see http://www.salon.com/2012/10/21/george_mcgovern_he_deserved_better/.

[9]A Brief History of the Drug War’, The Drug Policy Alliance, http://www.drugpolicy.org/new-solutions-drug-policy/brief-history-drug-war.

[10] Page 134 of Knoll D. Lowney, ‘Smoked Not Snorted: Is Racism Inherent in Our Crack Cocaine Laws?’, (1994), 45 Wash. U. J. Urb. & Contemp. L. 121: http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1141&context=urbanlaw.

[11]A Brief History of the Drug War’, The Drug Policy Alliance, http://www.drugpolicy.org/new-solutions-drug-policy/brief-history-drug-war.

[12]A Brief History of the Drug War’, The Drug Policy Alliance, http://www.drugpolicy.org/new-solutions-drug-policy/brief-history-drug-war.

[14] http://www.justice.gov/jmd/2013summary/pdf/fy13-dea-bud-summary.pdf. See also above table for the ’25 years’.

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